“Intermittent leave and reduced schedule leaves are sometimes fertile grounds for deception and fraud.” Charlie Plumb told us in a recent BLR webinar. Intermittent leave is one of the toughest parts of the FMLA to administer and it can cause frustration for employers, employees, and their coworkers. This is never more so than when fraud is suspected.
What is FMLA Fraud?
“First of all, understand what suspected fraud means—what fraud under FMLA means. It means intentional – not accidental or just being a slacker – it means intentional deception or untruthfulness.” Plumb explained.
FMLA fraud can be two types:
- Using real, approved, FMLA leave for non-FMLA purposes.
- Misrepresenting the medical condition in question, such as altering the medical documentation. (The employee could be misrepresenting their condition to employer or to the medical professional).
Handling Suspected FMLA Fraud: What Can an Employer Do?
In the context of intermittent leave, what can an employer do when fraud is suspected?
“You have the right, as an employer, to investigate instances in which you have some sort of honest suspicion that I am abusing or using FMLA leave fraudulently—particularly intermittent leave.” Plumb told us. This honest suspicion standard is really intended to protect the employer against a claim that they are interfering against FMLA leave and/or being retaliatory.
An employer my receive information from a supervisor’s observations, a co-employee, or even from a third party that leads to honest suspicion. Here are some examples that may give rise to honest suspicion:
- Absence patterns
- Absences coinciding within non-work events
- Absences that differ from the medical certification in frequency or duration
- Sightings or reports of the employee in inappropriate places
Here are some guidelines when investigating FMLA absences for suspected fraud:
- Ensure that the suspicion was reasonable. Can you explain what gave rise to the suspicion of abuse or fraud?
- Use a qualified professional for surveillance if needed. They will be more objective and will not look as retaliatory later (as it may look if people within the company trailed others).
- When questioning absence patterns, look over a long time period and compare with other employees. If something is a real pattern, it needs to happen over a long period of time to be truly suspicious. Ensure that the questionable pattern is really an anomaly from what other employees routinely take.
- Review the medical certification. See if the absences are consistent with what the healthcare provider said to expect.
- Confront the employee, explain what you have discovered, and take the very important step of giving them an opportunity to explain.
For more information on handling suspected FMLA fraud or abuse, order the webinar recording of “FMLA Intermittent and Reduced Schedule Leave: Master Top Challenges When Managing Frequent or Unexpected Absences.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Attorney Charlie Plumb represents management in all phases of employment law and labor relations and also serves as leader of McAfee & Taft’s Labor & Employment Group.
3 thoughts on “Handling Suspected FMLA Fraud”
This is a huge problem at my work. It’s so bad, that it sometimes shuts down operations. Worse yet those who have it brag about picking and choosing when they come in and my employer does NOTHING about it. Those with a backbone and work ethic are left with the threat of being fired because of attendance issues picking up the slack of the scumbags who openly abuse it. I work for the largest railroad in the country. You figure it out.
I know someone that is abusing their FMLA at Walmart. They are calling off everytime their boyfriend is off work so they she could be with them. I dont think this is right. My friend cannot get FMLA because of people like this and she does need it!
My alcoholic brother in law has been forging his parents doctors signature for aeveral years now! His parents live with me and my wife and we care for both of them (along with a disabled child). He uses FMLA to call in the nights he drinks to much so he doesn’t have to use is vacation or sick time. He has done absolutely nothing to help his parents. Heck he doesn’t even know the extent of their medical condition! Meanwhile I must take vacation to help take them to doctors and appointments! The VA doctors have been informed of his forgery but have done nothing about it and his employer also knows he is a drunk and not helping his parents. Yet nothing gets done about it! It’s not fare to my my and myself who care for them both! I wish I could get him in trouble but nobody seems to care!